Primer and thoughts on the Kim Davis saga so far

We consider the plight of Kim Davis, a county clerk jailed (and subsequently released) for her refusal to issue marriage licenses to same-sex couples.

I. Background.

The Supreme Judicial Court of Massachusetts thrust the issue of same-sex marriage (“SSM”) into the limelight of American politics in November 2003, when it held that the state’s constitution required the state to issue marriage licenses to same-sex partners. 1 27 states thereafter sought to preclude their judiciaries from doing the same thing, enacting constitutional amendments that explicitly precluded SSM, joining Nebraska, Alaska, and Nevada, which had already enacted such language. 2 Those which survived lower-court challenges bit the dust earlier this year when the federal Supreme Court held in Obergefell v. Hodges that if a state issues marriage licenses to opposite-sex couples, the federal constitution forbids that state from denying marriage licenses to same-sex couples. 3

In the Commonwealth of Kentucky, marriage licenses are issued by the clerk or deputy clerk of the county in which “the female” resides (language, one might note, that was, but is no longer, unambiguous). 4 They comprise, inter alia, “[a]n authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; … and the signature of the county clerk or deputy clerk issuing the license.” 5

Kim Davis was elected as the county clerk of Rowan County last fall. 6 At the time of her election, SSM, which Ms. Davis opposes on religious grounds, 7 was illegal in Kentucky, having been banned by a 2004 state constitutional amendment that was approved by 75% of voters. 8 Like a number of clerks around the country, Davis ignored Obergefell and refused to issue marriage licenses; following litigation by aggrieved same-sex couples to enforce Obergefell, Davis was jailed for contempt of court. 9

II. The Davis case.

Davis has become a cause célèbre for those who are critical of SSM and/or the Obergefell decision. 10 She is lauded as standing up for “religious freedom,” and sonorous criticisms of Obergefell, the remote cause of the situation, are bruited. But this is the wrong hill on which to die; religious freedom is not at issue in this case, and spinning the Davis controversy as being about Obergefell is unhelpful.

The latter can be dealt with very briefly, and so will be cleared away in limine: Davis’ objection is not to the reason why the law now requires her to issue marriage licenses but rather to actually doing so. She would be in precisely the same position had Kentucky, by the ordinary, legitimate legal processes, repealed its constitutional ban on SSM and enacted a statute authorizing it. In this context, Obergefell is an irrelevant distraction that adds more heat than light. What counts is that the controlling law in Kentucky has changed, obliging Davis to carry out a duty that was not required of her position when she was elected thereto, and that she finds unconscionable.

The former will require more discussion. The fundamental difficulty with characterizing Davis’ plight as being about religious freedom is that it fails to recognize that she is not acting in a private capacity.

A. The difference between personal and official capacities.

In a certain sense, “the state” does not exist; as an abstract, intellectual construct, it can act only through human instrumentalities: Governors, judges, sheriffs, clerks, etc. To say that “the state” may not or must do something is therefore to say that the humans through whom “the state” acts on that point may not or must do something. To say that “the state” may not refuse to appoint free counsel to criminal defendants is to say that trial judges may not refuse to appoint free counsel; to say that “the state” must read arrestees their rights is to say that policemen must do so; and the personal feelings of the individual judge or constable about Gideon or Miranda can have no relevance to the conduct expected of them. 11 Executive- and judicial-branch officials must follow controlling law even if they believe that that law is wrong, or even illegitimately-made. The rule of law would disintegrate if every government official could decide for themselves what the controlling law was and which cases they recognized as valid. 12

So, too, if those officials’ personal scruples can exercise a veto over the functions they carry out. Consider a Muslim clerk who does not believe in mixed marriages. Would we think it appropriate for that clerk to refuse a marriage license to a Muslim woman who wished to marry a Jewish man? Or imagine that a Mormon, elected as a state official charged with issuing annually-renewed liquor licenses, refuses to issue any liquor licenses; would that be proper? Government could not function under such conditions and people could not plan their affairs efficiently. To be sure, because these state instrumentalities are human, they have personal beliefs, and I do not slight Davis’—but they cannot control here. When you work for the government, the government works through you; you are an instrumentality. (It is for this reason that R.R. Reno is only narrowly correct to suppose that “Kim Davis poses little threat to the rule of law.” 13 She herself poses little threat thereto, but the principles that are advanced to defend her actions, principles that, if valid, must apply in all similar situations, 14do.)

And, moreover, whether elected or appointed, your relationship to the government in that context is that the government is your employer, not your government. It strikes me as commonplace that rights you have as a citizen against your government do not automatically become rights that you have as an employee against your employer merely because your employer happens to be the government. That’s why Garcetti v. Ceballos, for example, refused to allow a free-speech claim by a government employee who was fired for speech made in an official capacity. 15 Mr. Ceballos qua prosecutor was not Ceballos qua private citizen; Ceballos had first-amendment rights to speak in a private capacity, but speech produced in an official capacity and incident to his duties was unprotected because, so-to-speak, it wasn’t actually him speaking. In the same way, Kim Davis qua clerk is not Kim Davis qua private person; she is a hand of the Commonwealth of Kentucky, and the restrictions on what Kentucky may do through her hands necessarily bind her hands. 16

B. The faulty private-sector analogy.

The comparison has been made between Davis and the private business owners who are now under attack by a campaign that aims to force (for example) bakers to bake wedding cakes for same-sex weddings to which they have religious objections. 17 Whatever one may think of laws that abridge merchants’ absolute right to decide what they sell, when, and to whom (which is simply the obverse of “prevent merchants from discriminating among potential customers”), one cannot doubt that it is more appropriate that government operate under stricter non-discrimination rules than the private sector.

The distinguishing mark of the private sector is the disciplining effect of competitive markets, of supply and demand; if Muhammed’s Grocery doesn’t sell bacon, you simply go to a different store that sells bacon, and if there is no other store that sells bacon, that is an entrepreneurial opportunity: You set up “Jane’s Grocery (we sell bacon),” rake in cash hand-over-pig, and bacon becomes available to local consumers. (Moreover, incidentally, discrimination is inefficient, and businesses that discriminate are at a competitive disadvantage, which means that Muhammed faces strong pressure to either sell bacon or lose market share and moolah. But whether that is a trade-off worth making is, I insist, 100% Muhammed’s business and no one else’s. I support his right to be driven out of business by inefficient choices if he so pleases, and I am appalled by the persistence of laws that abridge his natural right to sell what he likes to whom he pleases. 18)

For that reason, it’s fatuous to talk about a merchant “forcing their views” on someone by refusing them a particular service. Generally, no potential customer has a right to purchase any particular product from any particular merchant, and a spurned customer simply goes to another private company for the same service.

But government is different. Unsurprisingly, government has a monopoly on government; complications of federalism aside, there is one government, and you have no no choice but to deal with it. If Davis owned a bakery as a side business and refused to bake a cake for a same-sex couple, they go to a different baker, 19 but if the clerk’s office that Davis runs refuses a marriage license to the same couple, they have no alternative means of obtaining it. (Davis’ defenders object that the couple could simply go to another city or county; not so, for as we have seen, Kentucky law tethers licenses to county-of-residence.) There is no alternative, competing provider. That’s why it is appropriate that government be bound down by regulations on how it transacts business that I would find repugnant if imposed on private citizens and firms; conservatives are most apt to favor regulation in cases where the market is incapable of operating efficiently which is why even stringent regulations on natural monopolies are uncontroversial. It’s proper to say, as a general matter, that the state may not discriminate, and that if you have a right to a state service (as, under controlling law, same-sex couples presently do), you have a right to receive that service from the ordinary instrumentalities by which the state provides it.

C. The better private-sector analogy

What’s more, to the extent that the private-sector comparison has any force, think about how this would normally be received in terms of restrictions not on merchants dealing with customers but employers dealing with employees. Think about what precisely is being claimed and how we would ordinarily react to such a claim.

The law changed after Davis was elected; one sympathizes with anyone who finds themselves in a job that, through no fault of their own, is not the one for which they signed up. But Davis is not saying “I was employed to do A and B; my employer now says that I must do C, and, because of my religious beliefs, I will not do C.” Saying that, and accepting the consequences, would be laudable. What she is actually saying (translating her elected position into the argot of private-sector employment) is closer to “I was employed to do A and B; my employer now says that I must do C, and because of my religious beliefs, I will not do C, and my employer cannot fire me because I refuse to do C.”

In any other context, however, conservatives would be skeptical of such a claim. Imagine that a man is hired by a department store’s photography studio as a child photographer, and the department store subsequently says “due to personnel shortages, you will have to take pictures of adults.” And suppose this man says “well, I’m a Muslim, and it would violate my religious beliefs to take photographs of adult women to whom I’m not related.” Or, if that hypothetical doesn’t appeal, consider the recent story of a flight-attendant who, having converted to Islam, sought to avoid serving alcohol to passengers, and was terminated by the airline for which she worked. 20

What comes next in such cases will usually be a swift firing and an even-swifter Title VII lawsuit. But I think that conservatives would be skeptical of such claims. Why? We believe in equality before the law, and that equity means treating everyone the same, and so we are skeptical of special treatment. When Prof. Louis Michael Seidman told a Federalist Society Symposium that I attended in 2007 that equal protection means treating people similarly to the extent they’re the same and differently to the extent they’re different, I would recall there being an audible collective scoff. 21 Discrimination is one thing, but forcing an employer to keep an employee who will not do the work expected of similarly-situated employees is inefficient. If a reasonable accommodation can be made by which Davis does not have to issue the licenses to which she objects while citizens can still get the services to which they’re entitled (more on this anon), it should be made, just as, if reasonable accommodations can be made by which the flight attendant doesn’t have to serve alcohol while customers can still get the services that the airline is trying to sell them, they should be made. That’s proper in a liberal society. 22 But we tend to think dimly of claims that employers have to bend over backwards to accommodate at all costs.

III. A different iteration: Judges

A different situation obtains when judges refuse to conduct weddings, motivated in some way by the SSM issue. For example: In Oregon, a state judge is now under fire for first “instruct[ing] his staff to refer same-sex couples looking to marry to other judges,” and subseqently “decid[ing] to stop performing weddings altogether,” 23 and three years ago, in Texas, a state judge refused to perform any marriages until SSM was legalized in Texas. 24

I do not see a problem in this iteration, because my understanding is that while judges are typically authorized to marry people, they are under no obligation to do so. If a state offers marriage licenses, qualified persons have a right to be issued that license by the normal state instrumentalities; that’s the problem with Davis and similarly-situated people. But no one has a right to be married at any particular time by any particular person authorized to conduct the ceremony; the function is (as I understand it) purely discretionary. The judge is no more (or, to be sure, less) functioning as an instrumentality of the state in that context than is a priest, a minister, or, in some states, a private individual, and no one would suppose that I am being deprived of something to which I’m entitled if my minister refuses to marry me to my betrothed, notwithstanding that I was entitled to the marriage license from the state. That, I think, is different.

IV. Endgame.

The honorable way out for a person in Davis’ situation is resignation. It isn’t fair; it isn’t right; but it’s necessary. The character of her job has changed, through no fault of her own, to one that obliges her to behave in a way contrary to her beliefs. I sympathize. But while Obergefell is a deeply, deeply flawed decision, it is controlling law until it is overruled, and it seems to me that executive-branch officials cannot pick and choose without the nation descending into anarchy. For that reason, Davis must issue the licenses, or stand aside.

As a postscript, I must add that as this post goes to press, Davis has been ordered freed from jail, subject to the stipulation that she not interfere with the granting of licenses by her deputy clerk(s). 25 Whether it will prove a durable solution and an acceptable compromise that she delegate the task of issuing licenses to deputy clerks (or at least permit them to do so, under compulsion) remains to be seen. It is to be hoped that some such compromise can be found, but I have doubts about the practicalities.

Notes:

See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). I recognize that terminology is a disputed point in the debate, but will use the term SSM for reasons of concision. ↩

See Const. of Kentucky, § 99 (county clerk is an elected position); Shayla Menville, Davis following her mother as county clerk, Morehead News, Nov. 7, 2014, http://www.themoreheadnews.com/news/local_news/davis-following-her-mother-as-county-clerk/article_29982458-6689-11e4-ad6b-172bf9700635.html (last visited Sept. 8, 2015). As an aside: That article notes that “Democrat Kim Davis defeated Republican John Cox on Tuesday to claim the office of Rowan County clerk as the successor to her mother, Jean Bailey, who has held the position for 37 years.” Talk about a “professional political class”! We always talk about term limits on the national scale, but this kind of unattractive situation in which one person holds a local office for years or decades before exchanging it with an immediate family member is all-too common throughout America. ↩

A number of subtleties may be and are here elided; I recognize, for example, that the President of the United States claims authority to decide for himself that a statute of Congress is unconstitutional and what to do about it, see, e.g., Abner Mikva, Memorandum: Presidential authority to decline to execute unconstitutional statutes, Nov. 2, 1994, http://fas.org/irp/agency/doj/olc110294.html (last visited Sept. 8, 2015); cf. United States v. Windsor, 133 S.Ct. 2675, __ (Scalia, J., dissenting), and that this is appropriate in the absence of a final decision by the Supreme Court. In my view, however, it being “emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), a decision by the Supreme Court is binding upon the executive and judicial branches of the federal and state governments unless and until overruled by that court. Cf. Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). The Bush administration, for example, might very well have argued in subsequent litigation that some of the court’s Guantanamo Bay cases were wrong and should be overruled, but it was bound to conform its behavior to the law announced by the court even if it thought the law otherwise. ↩

But cf. Connick v. Myers, 461 U.S. 138, 143-144 (1983) (noting that courts have long-spurned Justice Homes’ wisdom that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” in favor of the more flexible, sympathetic doctrine reflected in Connick and Garcetti). ↩

Unlike the late Senator Goldwater, who voted against the Civil Rights Act because he believed it unconstitutional (as his canonical book Conscience of a Conservative explains with some force), I would have voted for the Civil Rights Act on the stipulation that it contain a sunset clause. It was proper, it seems to me, as an extraordinary and temporary remedy to an extraordinary problem, but it is now, at best, reaching the end of its useful lifespan. As with the Voting Rights Act, the CRA is remedial legislation, and it cannot be renewed indefinitely predicated on the original motivating conditions. Cf. Shelby County v. Holder, 570 U.S. 2 (2013). The systemic evils that the public accommodations provisions sought to drive out have been driven out, and so the balance of equities now tilts decisively in its natural direction: Toward preservation of the right to free contract. The government has no more right to command you to sell to Jones than it does to command you to buy from Smith, cf. NFIB v. Sebelius, 132 S. Ct. 2566 (2012) (Roberts, C.J.); and so it is, in my view, time for us to start rolling back these would start looking at removing the existing ones on our way back to normalcy. ↩

Given the realities of globalized commerce, the notion that a gay couple will be unable to find someone to bake their cake doesn’t even rise to the respectability of being wrong; it is anachronistic. ↩

See Friedrich Hayek, Why I Am Not a Conservative, http://object.cato.org/sites/cato.org/files/articles/hayek-why-i-am-not-conservative.pdf (1960) (“what in Europe was called ‘liberalism’ was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense”). ↩